Statement on the Duty of the Haitian State to Investigate the Gross Violations of Human rights Committed during the Regime of Jean-Claude Duvalier

1.On
January 16, 2011, Jean-Claude Duvalier, president of Haiti from 1971 to
1986, returned to the Republic of Haiti after 25 years in exile in
France. The government of Jean-Claude Duvalier was characterized by
systematic, gross violations of human rights. The Inter-American
Commission on Human Rights (hereinafter the “Inter-American Commission”,
the “Commission”, or the “IACHR”) documented the situation in its Report
on the Situation of Human Rights in Haiti, published in 1979[1]
and prepared on the basis of an in loco observation visit
conducted in Haiti from August 16 through 25, 1978.

2.During that visit, the IACHR compiled information on the repression
practiced by the state apparatus headed by Jean-Claude Duvalier. In the
process, the Commission put together a list of 151 persons alleged
either to have been executed while in State custody or to have died as a
result of the wretched prison conditions. Most of the deaths were said
to have occurred between 1975 and 1976. The Commission also compiled
testimony on the practice of extrajudicial executions at the Fort Dimanche prison, and on the inhumane prison conditions at that facility.
It also confirmed the existence of a practice of arbitrary detention and
torture and cited specific cases of violations of due process and of the
right to freedom of expression, the right of assembly and the right of
association, the right of residence and movement, the right to
nationality and political rights. The IACHR recommended to the Haitian
State that, inter alia, it “investigate and punish those
responsible for the numerous violations of the right to life and
physical security.”

3.After Jean-Claude Duvalier’s return to Haiti, the Inter-American
Commission reminded the Haitian State of its duty to investigate,
prosecute, punish and redress the human rights violations.[2]
Then, on March 28, 2011, the Commission held a public hearing on
impunity for human rights violations during the Duvalier dictatorship.
At that hearing the representatives of the State reported on Haiti’s
willingness to prosecute the human rights violations perpetrated under
the regime of Jean-Claude Duvalier, on the judicial investigations being
conducted since Duvalier’s return to the country, and on the
difficulties that the Haitian system of justice is encountering in
conducting those investigations. Accordingly, they requested technical
support from the international community and, in particular, from the
IACHR.

4.The
Inter-American Commission welcomes the Haitian authorities’ commitment
to investigate and punish those responsible for the gross human rights
violations committed during the regime of Jean-Claude Duvalier. In
response to the public request for technical assistance made by the
State and civil society organizations, the IACHR is issuing this
statement in order to collaborate with the Haitian justice system in the
investigation and punishment of the serious human rights violations
committed during the regime of Jean-Claude Duvalier.

5.The
Commission will briefly set out Haiti’s international human rights
obligations and will conclude that the torture, extrajudicial executions
and forced disappearances committed during the regime of Jean-Claude
Duvalier are crimes against humanitythat, as such, are subject
neither to a statute of limitations nor to amnesty laws.

I. HAITI’S INTERNATIONAL OBLIGATIONS UNDER THE INTER-AMERICAN
HUMAN RIGHTS SYSTEM

6.On
September 27, 1977, Haiti deposited its instrument of accession to the
American Convention on Human Rights (hereinafter the “American
Convention”), which entered into force on July 18, 1978. Pursuant to
Article 276(2) of the Haitian Constitution, this international treaty
has become part of Haitian domestic law and abrogates any and all laws
contrary to it.[3]
Furthermore, on March 20, 1998, Haiti accepted the binding jurisdiction
of the Inter-American Court of Human Rights (hereinafter the
“Inter-American Court”).

7.Therefore, as part of the apparatus of the State, the Haitian judiciary
is bound by the American Convention and has an obligation to ensure that
the Convention’s provisions are not undermined through enforcement of
laws that are contrary to its object and purpose. Accordingly, “the
Judiciary must exercise a sort of ‘conventionality control’ between the
domestic legal provisions which are applied to specific cases and the
American Convention on Human Rights. To perform this task, the Judiciary
has to take into account not only the treaty, but also the
interpretation thereof made by the Inter-American Court, which is the
ultimate interpreter of the American Convention.”[4]

8.Furthermore, according to the principle of the continuity of the State
in international law, irrespective of any changes of government that may
have occurred over the course of time the State’s responsibility for
human rights violations committed by previous governments persists.[5]
In its first judgment delivered against the Haitian State, the
Inter-American Court repeated its jurisprudence constante to the
effect that “the
conditions that a country is undergoing, no matter how difficult they
may be, do not constitute grounds for the States Parties to the American
Convention to be released from complying with the obligations
established therein.”[6]
It wrote in this regard that “the
principles of identity or continuity of the State are fundamental when
determining its responsibility, irrespective of the political moment in
the country when the alleged violations of the provisions
of the American Convention occurred.”[7]

9.As
the IACHR and the Inter-American Court have held, a State has an
international obligation to investigate and punish serious human rights
violations, even those that occurred prior to the date on which the
American Convention entered into force for that State.[8]
Accordingly, the Haitian State’s duty to investigate and punish extends
to those serious violations that occurred prior to July 18, 1978, the
date on which the American Convention entered into force, and that have
gone unpunished. The IACHR also recalls that OAS member States have an
international obligation to guarantee the human rights recognized in the
American Declaration of the Rights and Duties of Man, adopted in 1948.

II. NON-APPLICABILITY OF STATUTORY LIMITATIONS TO CRIMES AGAINST
HUMANITY

10.Crimes against humanity were defined for the first time in the
Principles of International Law Recognized in the Charter of the
Nuremberg Tribunal and in the Judgement of the Tribunal, adopted by the
International Law Commission of the United Nations in 1950. The United
Nations General Assembly approved these principles before the regime of
Jean-Claude Duvalier ever began in Haiti. This confirms the fact that
the prohibition of crimes against humanity had already acquired jus
cogens status at the time the aforementioned gross violations of
human rights were committed in Haiti.[9]

11.The
Inter-American Court acknowledged that the Nuremberg Charter played an
important role in establishing the elements that characterize a crime as
a “crime against humanity.” Accordingly, for the inter-American system,
crimes against humanity are any inhuman act, committed in a context of
generalized or systematic attacks against civilians. Even one such act,
when committed in the context described, would suffice for a crime
against humanity to exist.[10]
Crimes against humanity are gross violations of human rights that affect
humanity as a whole. The damage caused by these crimes endures within
the national society and the international community, both of which
demand that those responsible be investigated and punished.[11]

12.The
Convention on the Non-Applicability of Statutory Limitations to War
Crimes and Crimes Against Humanity clearly provides that “[n]o statutory
limitation shall apply to [crimes against humanity], irrespective of the
date of their commission.” The Inter-American Court has written that
States that have not ratified that Convention, as in the case of Haiti,
must nonetheless comply with this imperative of the law, as “the
non-applicability of statutes of limitations to crimes against humanity
is a norm of General International Law (ius cogens), which is not
created by said Convention, but is acknowledged by it.”[12]

13.The
jurisprudence constante of the Inter-American Court holds that
“all amnesty provisions, provisions on prescription and the
establishment of measures designed to eliminate responsibility are
inadmissible, because they are intended to prevent the investigation and
punishment of those responsible for serious human rights violations such
as torture, extrajudicial, summary or arbitrary execution and forced
disappearance, all of them prohibited because they violate non-derogable
rights recognized by international human rights law.”[13]
On the subject of crimes against humanity, the Inter-American Court has
written that “the
duty to investigate and eventually conduct trials and impose sanctions,
becomes particularly compelling and important in view of the seriousness
of the crimes committed and the nature of the rights wronged.”[14]

14.Thus, it is clear that the torture, extrajudicial executions and forced
disappearances committed during the regime of Jean-Claude Duvalier
constitute crimes against humanity that must not go unpunished, are not
subject to any statutory limitations and, as will be shown below, cannot
be the subject-matter of amnesty.[15]
The State must remove all obstacles standing in the way of compliance
with the obligation to investigate and punish those responsible, such as
statutory limitation, the non-retroactivity of criminal law and the
principle of non bis in idem, and must use every means at its
disposal to conduct the investigation expeditiously.[16]

III.
AMNESTY LAWS

15.The
combined case law of the inter-American human rights system holds that
amnesty laws for serious human rights violations are incompatible with
the American Convention.[17]

16.The
first time the Inter-American Commission addressed the question of
amnesty laws was in its 1985-1986 Annual Report.[18]
In 1992, the Commission issued a series of decisions on individual cases
in which it held, for the first time, that amnesty laws are incompatible
with the American Convention.[19]
Since then, both the Inter-American Commission and the Inter-American
Court have had occasion to elaborate upon their case law on this
subject.

17.States that adopt laws whose effect is to
deny judicial protection and exercise of the right to a simple and
prompt recourse are violating articles 8 and 25 of the American
Convention, in combination with articles 1(1) and 2 thereof. Such laws
lead to the defenselessness of victims, precludes the identification of
the individuals who are responsible for human rights violations and
perpetuate impunity. Hence, because amnesty laws are manifestly
incompatible with the American Convention, they lack legal effect and
must not obstruct the investigation of serious human rights violations
and the identification and punishment of those responsible.[20]

18.Crimes against humanity violate a number of non-derogable rights
recognized in the American Convention, violations which must not go
unpunished. The adoption and enforcement of laws that grant amnesties
for these crimes prevents compliance with the obligation that every
State has to investigate crimes against humanity and prosecute persons
accused of having committed them.[21]
The Inter-American Court has written that the obligation under
international law to prosecute and, if found guilty, punish “the
perpetrators of certain international crimes, among which are crimes
against humanity, is derived from the duty to protect embodied in
Article 1(1) of the American Convention.””[22]

19.All
regional human rights systems have held that amnesties for serious human
rights violations are incompatible with international law. Similarly,
the supreme courts of a number of members of the Organization of
American States have incorporated this jurisprudence into their own case
law, thereby observing in good faith their international obligations.[23]

20.As
the Inter-American Commission had requested in its final observations in
the Case of Gelman, the Inter-American Court held that the fact
that an amnesty law has been upheld in a popular referendum does not
make it legitimate under international law. In its judgment, the Court
ruled that “the protection of human rights constitutes an insurmountable
limitation to majority rule, that is to say, to the sphere of things
that are “susceptible to being decided” by a majority in the context of
democratic initiatives” (the Executive Secretariat’s translation).[24]

21.Finally, when the Legislative Branch adopts laws that are contrary to
the American Convention, the Judicial Branch is bound to honor the
obligation to respect rights, as stated in Article 1(1) of the said
Convention; consequently, it must refrain from enforcing any laws
contrary to that Convention.[25]

IV. Inter-american
STANDARDs

22.The
Commission will now briefly turn its attention to the case law of the
Inter-American Court on the subject of forced disappearance,
extrajudicial execution and torture. The purpose of this summary is to
provide the Haitian justice system with a guide to use in the
investigation and punishment of the serious human rights violations
committed during the regime of Jean-Claude Duvalier.

-
Forced disappearance

23.The
inter-American system was one of the first to build a body of
comprehensive case law on the continuing and autonomous nature of the
crime of forced disappearance of persons.

24.In
one of its earliest judgments, the Inter-American Court wrote that
“[t]he forced disappearance of human beings is a multiple and continuous
violation of many rights under the Convention that the States Parties
are obligated to respect and guarantee.”[26]
These are the rights to life, to personal liberty, and to humane
treatment. The Court has also written that forced disappearance also
involves a violation of the right to juridical personality.[27]
The elements constituting forced disappearance are: a) deprivation of
liberty; b) direct involvement of governmental agents or their
acquiescence; and c) refusal to acknowledge the detention and to
disclose the fate and whereabouts of the person concerned.[28]

25.The
established case law holds that the acts that constitute a forced
disappearance have a permanent nature and that their consequences imply
multiple offenses to the rights recognized by the American Convention,
so long as the whereabouts of the victim or his/her remains is unknown.[29]
Correspondingly, the obligation to investigate and punish forced
disappearance of persons has attained the status of jus cogens.[30]

26.A
State’s international responsibility is compounded when “the forced
disappearance forms part of a systematic pattern or practice applied or
tolerated by the State”, thus making it “a crime against humanity
involving a gross rejection of the essential principles on which the
inter-American system is based.”[31]
In order not to replicate the conditions of impunity, the State must
adopt all measures necessary to investigate and punish those
responsible.[32]

27.The
obligation to undertake an investigation any time there are reasonable
causes to suspect that a person has been submitted to forced
disappearance “exists regardless of the filing of a complaint, since in
cases of forced disappearance international law and the general duty to
guarantee, impose the obligation to investigate the case ex officio,
without delay, and in a serious, impartial, and effective manner.”[33]
The obligation to investigate persists until the person deprived of
liberty or his or her remains have been found. In the case of
presumption of death due to forced disappearance, the burden of proof
falls upon the State, as it is the State that had the alleged control
over the detained person and their fate.[34]

-
Extrajudicial execution

28.According to the jurisprudence constante of the inter-American
system, “[t]he right to life is a fundamental human right, and the
exercise of this right is essential for the exercise of all other human
rights. If it is not respected, all rights lack meaning.”[35]
The right to life is one of the rights that form part of the non-derogable
core established in Article 27(2) of the American Convention; these are
rights that cannot be suspended in case of war, public danger or other
threats to the independence or security of the States Parties.[36]

29.The
legitimate use of force by State law enforcement officials must be limited by
the principles of exceptionality, necessity, proportionality and
humanity. Furthermore, domestic law must establish clear guidelines
regulating the use of force, and the State must train its law
enforcement officials on the protection of human rights and the limits
to which the use of weapons must be subject. Finally, procedures must
be in place to determine whether the lethal force used by agents of the
State was legal.[37]

30.In
cases involving a pattern of extrajudicial executions tolerated and
promoted by the State, the Inter-American Court has deemed that the
State is responsible for having created a climate incompatible with the
effective protection of the right to life. In this sense, “the States
must take all necessary measures not only to prevent and punish
deprivation of life as a consequence of criminal acts, but also to
prevent arbitrary executions by its own security forces.”[38]
Murders committed within the context of a generalized or systematic
attack against the civil population constitute crimes against humanity.[39]

31.The
investigation into a death that may have been by extrajudicial execution
“must be conducted using all legal means available and should be aimed
at establishing the truth and conducting the investigation, search,
arrest, trial, and punishment of all masterminds and actual perpetrators
of the crimes, especially when State officials are or may be involved.”[40]
Thus, the obligation to investigate extrajudicial executions committed
in a context of systematic acts of violence committed against a specific
group within society is not a question of examining the crime in
isolation, “but rather of inserting it in a context that will provide
the necessary elements to understand its operational structure.”[41]

32.The
principles that can be used to determine whether the investigation of a
presumed extrajudicial execution was properly done, are those contained
in the United Nations Manual on the Effective Prevention and
Investigation of Extra-legal, Arbitrary and Summary Executions (Protocol
of Minnesota). Based on that manual, the
Inter-American Court has singled out the principles that such inquiries
must observe. The State authorities that conduct the investigation
must: a) identify the victim; b) collect and preserve evidence
related to the death in order to assist with any investigation; c)
identify possible witnesses and obtain testimonies in relation to the
death under investigation; d) determine the cause, manner, place and
time of death, as well as any pattern or practice which may have brought
about such death, and e) distinguish between natural death, accidental
death, suicide and homicide.[42]

33.As
for persons in the custody of the State, the latter is responsible for
observing those persons’ right to life, as it is the guarantor of the
rights recognized in the American Convention. Accordingly, “if a person
was detained in good health conditions and subsequently died, the State
has the obligation to provide a satisfactory and convincing explanation
of what happened.”[43]

-
Torture

34.International human rights law strictly prohibits torture and cruel,
inhuman or degrading punishment or treatment. The Inter-American Court
has repeatedly held that “[t]he
absolute prohibition of torture, both physical and psychological, is
currently part of the domain of the international jus cogens.”[44]The
prohibition of torture “is
absolute and non-derogable, even in the most difficult circumstances,
such as war, the threat of war, the fight against terrorism, and any
other crime, martial law or state
of emergency, civil war or commotion, suspension of constitutional
guarantees, internal political instability, or any other public disaster
or emergency.”[45]

35.An
act constitutes torture when the mistreatment is: a) an intentional
act; b) causes severe physical or mental suffering, and c) is committed
with a given purpose or aim.[46]
The
obligation to guarantee the right recognized in the American Convention
not to be subjected to torture or cruel, inhuman or degrading treatment
or punishment entails the State’s obligation to investigate possible
acts or torture of other cruel, inhuman or degrading treatment.[47]

36.Even
when the use of torture or cruel, inhuman or degrading treatment has not
been reported to the competent authorities, whenever there is
well-grounded reason to believe that an act of torture has been
committed the State has the obligation to
commence, on its own motion, an effective, impartial, independent and
detailed investigation to determine the nature and origin of any
injuries noted, identify the responsible parties and begin their
prosecution.[48]
The State must consider that out of fear the victim may have refrained
from reporting what happened. The judicial authorities have the
duty to guarantee the rights of the person detained, which entails
obtaining and ensuring the authenticity of any evidence that can prove
acts of torture.

37.Finally, in order to determine whether an investigation into alleged
acts of torture is effective, the State may use the United Nations
Principles on the Effective Investigation and Documentation of Torture
and Other Cruel, Inhuman or Degrading Treatment or Punishment, contained
in the Manual on Effective Investigation and Documentation of Torture
and Other Cruel, Inhuman or Degrading Treatment or Punishment (Istanbul
Protocol).[49]

V. Conclusions

38.
As a State Party to the American Convention, the Republic of Haiti has
an international obligation to investigate and, where necessary, punish
those responsible for the gross human rights violations committed during
the regime of Jean-Claude Duvalier. The Constitution of Haiti provides
that the American Convention is part of Haitian domestic law and
abrogates any and all laws that are contrary to the American Convention.

39.
According to the documentation available, the government of Jean-Claude
Duvalier was characterized by systematic violations of human rights such
as extrajudicial executions, forced disappearances and torture. Under
international law, such acts constitute crimes against humanity. The
prohibition of such crimes, the fact that they are not subject to any
statutory limitations, the obligation to investigate and punish them,
and the absolute prohibition of torture, are now part of the jus
cogens. In other words, these are imperative norms that States
cannot fail to comply with. Accordingly, amnesty for such crimes is
prohibited and the State must remove all obstacles that stand in the way
of its compliance with its international obligation.

40.Haiti now has a unique opportunity. The investigation and punishment of
these crimes could become a fundamental step in strengthening the rule
of law and restoring confidence in the Haitian justice system, and an
example of good faith compliance with international commitments. The
Inter-American Commission is aware of the significant challenges faced
by the Haitian judiciary considering the unprecedented magnitude of
these crimes, the fact that they happened three decades ago, and the
overall weakness of the judicial system, particularly in the difficult
context of a reconstruction process.

41.Taking these difficulties into account, the Commission once again
compliments the Haitian State for the judicial investigations it has
either opened or reopened following the return of Jean-Claude Duvalier
to Haiti, and for its public acknowledgment to the effect that these
investigations are a priority for the State. The IACHR urges the
Republic of Haiti to use every means available to continue to
investigate the serious violations of human rights that were committed
in the period from 1971 to 1986, to prosecute and punish those
responsible and to make reparations to the victims.

42.The
Inter-American Commission is aware of the dilemma that the Haitian State
is facing and recognizes that the international community’s support and
commitment are essential if Haiti is to be able to successfully
prosecute and punish those responsible for these crimes. Accordingly,
the IACHR urges the international community to offer full assistance to
Haiti at this historical juncture for the Haitian justice system.

Washington DC, May
17, 2011.

[1]IACHR,
Report on the Situation of Human Rights in Haiti, December 13, 1979
(OEA/Ser.L/V/II.46).

[3]Article
276(2) of the Constitution of the Republic of Haiti provides that:
“Once international treaties or agreements are approved and ratified
in the manner stipulated by the Constitution, they become part of
the legislation of the country and abrogate any laws in conflict
with them” (the Executive Secretariat’s translation).